August 2015

Mandy J. Rodrigues, MA (Research: Behavioural Medicine), MA (Clinical Psychology

I feel very humbled to have been called upon as an expert witness for this landmark decision.  And this is a huge victory for surrogacy.  After winning this case, the attorneys can now approach the Constitutional Court and hopefully change the law as regards the genetic link requirement for surrogacy.

Surrogacy has gone through numerous changes over the recent years in order to iron out any potential problems with the surrogate mother giving up the baby.  The law has made it more formalized and a more secure option for couples who have no choice but to use a surrogate mother (SM).  One of these changes must be highlighted:

Prior to 2010, surrogate mothers had sixty days in which to change their minds about giving the baby up.  This is a scary thought.  Even when the baby is of our own genetic material, the surrogate mother could change her mind – leaving many Commissioning Parents (CP’s) with huge insecurity and concern.  There were also implications for the birth certificate.  The baby legally took on the name of the surrogate mother.  Now the application to the high court happens before conception, and the baby is deemed legally to be yours.  So the surrogate mother is assessed psychologically, and the decision is made even before pregnancy that she is willing to relinquish all rights to the baby at birth.

However, a strict prerequisite in surrogacy was that at least one gamete must be that of the Commissioning Mother or Father.  Donor embryos could not be used.  This limited opportunities for those who had both egg and sperm difficulties, and left them with no option but to look at adoption.  It also limited single mothers who were perhaps older and could not carry babies of their own or who had health issues like cancer rendering them unable to carry a baby of their own. 

When arguing this case, there was an opposing argument that if couples got to choose their egg donors, sperm donors and surrogates – then they were likely to try and produce “designer babies.”

There was also a question as to whether children born of donor gametes were less stable and had more issues than those born with at least one gamete relating to the parent.  Finally, there was the issue of bonding with one’s child if the gametes were not one’s own.

It has been argued that for all surrogacy, the decision to use a surrogate is not made lightly.  There must be medical evidence that a surrogate is required, and the attending fertility specialist must give a letter to this effect.  The same can be said for donor gametes.  There must be no choice but to use donor gametes.  Having said that, through all my years of experience in this field, I have never come across anyone who makes the decision to use donor gametes, be it egg, sperm or both, simply because they feel they can create a “designer baby.”  It is a huge emotional adjustment to make use of donor gametes, and one that is fraught with sadness, grief, questions and ultimately acceptance – often after many years of taxing fertility treatments.  It is not an easy decision, and not one that a person or couple willingly uses as their first choice. 
The argument also included the fact that there is too little research done in South Africa which shows that parents are less attached to their own gametes and this has a negative impact on the child.  This has not been seen in my practice clinically.  Further research is obviously needed.  The mere fact that one is assessed in depth to use a surrogate includes one addressing these motivations and the future.  Because one is already using a surrogate, the IP’s are more in tune with the fact that they must use strategies to bond with their unborn baby.  They almost seem to research more and be more prepared for the journey ahead in terms of bonding as they are aware they might be at a disadvantage.  They have made a concerted decision to engage in such a process, and this decision is not reached easily.  It is spoken about, thought about and researched.
Our argument was successful in demonstrating that a child born via a surrogate mother with no genetic link to the IP’s will not be discriminated against in terms of bonding.  Nor in terms of the future of the child in terms of stability.  Many couples are now willing to make use of this as an option before they consider the next step of adoption.